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State v. Nelson

Court of Appeal of Louisiana, Fifth Circuit

March 11, 2015

STATE OF LOUISIANA
v.
JEFFERY D. NELSON, JR

Page 494

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 11-1048, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, MATTHEW CAPLAN, DOUGLAS W. FREESE, VINCENT J. PACIERA, JR., ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

JANE L. BEEBE, ATTORNEY AT LAW, Louisiana Appellate Project, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst.

OPINION

MARC E. JOHNSON, J.

Page 495

[14-252 La.App. 5 Cir. 2] Defendant, Jeffery Nelson, appeals his convictions and sentences for second degree murder, felon in possession of a firearm, and conspiracy to commit obstruction of justice claiming insufficient evidence, erroneous denial of his challenges for cause during jury selection, erroneous admission of an officer's testimony on expert matters, and denial of his right to present a defense. For the reasons that follow, we affirm Defendant's convictions and sentences.

Defendant was indicted by a grand jury on February 2, 2012 and charged with the second degree murder of Charles Smith in violation of La. R.S. 14:30.1, felon in possession of a firearm in violation of La. R.S. 14:95.1, and conspiracy to commit obstruction of justice in violation of La. R.S. 14:26 and 14:130.1(A)(2) and/or (A)(3).[1] Defendant pled not guilty and proceeded to trial with his two co-defendants on August 5, 2013 before a twelve-person jury. After an eight-day [14-252 La.App. 5 Cir. 3] trial, the jury returned a verdict of guilty as charged against Defendant on all counts.[2]

The trial court subsequently sentenced Defendant to concurrent sentences of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for second degree murder; 20 years at hard labor without benefit of probation, parole, or suspension of sentence for felon in possession of a firearm; and 30 years at hard labor for conspiracy to commit obstruction of justice.

FACTS

The Murders

Theodore Pierce was murdered outside of a friend's house in Bridge City on January 2, 2011. Co-defendants McClure and Griffin were arrested shortly thereafter and charged with his murder. Pierce's murder was witnessed by Charles Smith, a neighbor, who gave a statement to the police and who identified McClure and Griffin as the shooters in photographic lineups two days after the murder.

In his recorded statement, Smith explained that he witnessed McClure and Griffin, whom he occasionally saw walking around the neighborhood, shoot at Pierce while they were standing in front of a

Page 496

neighbor's house located at 301 Fourth St.[3] Smith stated that the duo were initially standing in the street and then made their way into the yard while they shot at Pierce. He then observed McClure approach Pierce and " finish him off." Smith further stated that he saw a second male on the scene at the time of the shooting but did not see his face or notice whether he had a gun. Smith confirmed that Pierce did not have a gun and was not shooting back at McClure or Griffin.

[14-252 La.App. 5 Cir. 4] Smith also told police during his statement that the day after the shooting, McClure drove to his house armed with a gun and confronted him stating, " I heard you talking about, about the, the shooting," to which Smith responded that he had not been talking about anything. Smith stated that he believed his life was in danger because he had witnessed the murder.

At approximately noon on August 17, 2011, the day before a scheduled motion hearing to determine the admissibility of the photographic identifications made by Smith of McClure and Griffin as the shooters in Pierce's murder, Smith was found shot to death in front of his home located on Fourth Street in Bridge City.[4] Eight casings were found at the scene and Jene Rauch, a firearm and tool mark examiner expert, opined that one gun was used in the shooting. An autopsy revealed that Smith died of multiple gunshot wounds to his head, chest and leg. The murder weapon was never recovered.

Smith's friend, John Stewart, was visiting Smith at his house on Fourth St. when Smith was shot. Stewart testified that while he was in the bathroom, Smith went outside to check the mail, at which time Stewart heard several gunshots. Stewart went to the door, looked out, and saw Smith's feet. He immediately called 9-1-1. When Stewart stepped outside, he saw a young black male with dreadlocks, wearing a black " wife beater," blue shorts, and a black bandana over his head, jump over the fence. Stewart was unable to see the man's face because it was partially covered; hence, Stewart was unable to identify the man from a photographic lineup. At trial, the parties stipulated that at the time of Smith's murder, Defendant was a young black man with dreadlocks.

[14-252 La.App. 5 Cir. 5] Colonel Timothy Scanlan, an expert in crime scene reconstruction, testified that the evidence was consistent with a " targeted action," meaning one mobile shooter started shooting from the rear of the residence in a place of cover and then moved forward down the fence line. He opined the evidence was consistent with someone who was waiting to attack Smith when he came out of his home.

Detective Matthew Vasquez of the Jefferson Parish Sheriff's Office (JPSO) investigated Smith's murder. Because Smith was an eyewitness to Pierce's murder and because Smith's murder occurred the day before a hearing set in the Pierce case, Det. Vasquez believed Smith's murder was not a coincidence. Accordingly, Det. Vasquez started to look into McClure's and Griffin's backgrounds and associates. He found that Defendant, McClure's brother, fit the description of Smith's assailant provided by Stewart. Det. Vasquez's focus on Defendant intensified after he listened to recorded phone

Page 497

conversations from the Jefferson Parish Correctional Center (JPCC) between McClure and Defendant in the hours after Smith's murder.[5] Det. Vasquez subsequently subpoenaed Defendant's cell phone records which showed that he was in the area of Smith's residence at the time of his murder and left the area soon thereafter.

Defendant was arrested on unrelated outstanding attachments and questioned about Smith's murder. After being advised of his rights, Defendant gave two taped statements. In his first statement, Defendant denied knowing Smith and was unable to say what he was doing on the day of Smith's murder. Defendant also denied owning a cell phone. When confronted with his cell phone records, Defendant admitted he had lied and ultimately admitted that he used his cell phone to talk to McClure while McClure was in jail.

[14-252 La.App. 5 Cir. 6] In his second statement, Defendant claimed he was in Marrero with a friend named " Roy" on the day of Smith's murder and that he did not return to Bridge City until the next day.[6] Det. Vasquez then confronted Defendant with his cell phone records which placed him in Bridge City at the time Smith was killed. Defendant became agitated and angry and said, " f**k the cell phone records." Defendant questioned how anyone was going to identify him if the shooter had a mask over his face. When Det. Vasquez asked how Defendant knew that information, Defendant explained that his mother and friends had been in court when the suspect's description had been discussed. Det. Vasquez then played the phone conversation between McClure and Defendant that took place six hours after the shooting wherein McClure asked whether the information he heard about " Dude" was true. Defendant stated " Dude" referenced a family member, but could not say who the family member was or his relationship. Also in that phone conversation, Defendant told McClure that their mother did not want him talking to McClure because the call could be traced. When Det. Vasquez asked Defendant why he was worried about being traced if they were only talking about a relative, Defendant became very angry and told Det. Vasquez to " just book me then. I'm done. Just book me." Defendant was subsequently charged with Smith's murder.

The Conspiracy

During his investigation of Smith's murder, Det. Vasquez listened to " hundreds of hours" of jailhouse phone calls made by McClure and Griffin from the JPCC both before and after Smith's murder.[7] Det. Vasquez explained that while neither McClure, Griffin, nor Defendant admitted killing Smith in any of these phone calls, he identified several phone calls that he deemed significant. He [14-252 La.App. 5 Cir. 7] had those calls transcribed and excerpts were played for the jury, beginning with a phone call on January 6, 2011, a few days after Pierce's murder. During the playing of these phone calls for the jury, Det. Vasquez offered testimony as to who was talking

Page 498

and the meaning of the " code" language being used.

In the January 6, 2011 phone call from McClure to an unknown male, McClure stated that he's " good" as " [l]ong as the n*gg* don't say nothing." The next day McClure assured his mother that everything was alright " long as nobody don't say nothing." In a call to his brother, Frank, two days later, McClure indicated that the police claimed they had one witness and " n*gg* already know who the witness is."

On January 25, 2011, McClure and an unknown female facilitated a three-way call with Defendant during which McClure stated, " I ain't trippin' . . . They don't got no witness . . . Well, they got one witness, but . . . he ain't coming to court or whatever, woo di woo." Two days later, Defendant asked McClure how he got caught to which McClure responded, " I was acting stupid . . . I was acting dumb as a mother-f**ker son . . . I was on the wrong level son." [8]

Four days later, on January 29, 2011, McClure had another three-way call with his friend, Willis Stevenson, and Defendant. During the call, Stevenson told McClure that Griffin had not been to court and that Griffin's attorney said she would be going home in 120 days because the State did not any evidence against her. McClure responded, " Right, yeah cause my lawyer was like 'uh you know they got one witness but uh your little brother is on that.' When he told me that, I already know what it was ( laughing ), ya heard me?" Stevenson then told McClure [14-252 La.App. 5 Cir. 8] about a conversation Griffin's father, Terrence Daniels, had with Smith. Specifically, Stevenson said, " T went over there today, cause he was with Scooby ya know what I'm saying. So boy Scooby brought him, n*gg* was at the Fishhook. Ya know what I'm saying, he brought him to the Fishhook, I guess that where he felt comfortable at or whatever." Later at trial, Smith's girlfriend, Margie McKeel, testified about an incident where Smith had told her that Griffin's father had threatened his life, telling Smith that " he better not testify or else there's going to be gunplay."

A few months later, on June 2, 2011, Griffin called an unknown female and told her that her attorney was going to set Griffin's next court date for June 23 but that Griffin told her attorney the date was " too early." Griffin explained that they needed to get their discovery packets. She stated that Defendant " was hollering about . . . other lil dude whose name starts with a C, ya heard me. You know who I'm talking about . . . . I think it's Troy's brother, lives on Fourth Street. I ain't gonna say his name." [9] Later on the same day, Griffin made a call to an unknown male and told him that " they only got one witness," who she identified as " Charles[,] Troy's brother." She further stated that his statement did not add up and that " he really didn't like see nothing."

Two days later on June 4, 2011, Griffin spoke to a man named Louis Wells and told him to ...


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